Bzik v Circuit Court in Swidnica Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWHC 1308 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2012 |
| Docket Number | CO/3187/2012 |
[2012] EWHC 1308 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/3187/2012
Miss R Kapila (instructed by Kaim Todner) appeared on behalf of the Appellant
Mr M Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
An accusation European Arrest Warrant was issued out of the Circuit Court in Swidnica on 24 May 2011 for a single offence of "accepting" for the purpose of making profit (or, in the original translation of the warrant, in order to gain a financial benefit) 3 music CDs, 75 film discs and an unspecified number of computer program discs, all of which had been produced in breach of copyright belonging to owners in Warsaw. The offence was alleged to have occurred in summer 2004 and then on 21 September 2004 in Golínsk, a border crossing.
At retail value, that is to say the price that would be paid for legitimate discs, the items were worth a little over £1,300 Sterling. The offence is punishable with 5 years' imprisonment. The warrant was certified by SOCA on 5 December 2011. The appellant was arrested on 6 December and brought before Westminster Magistrates' Court on the same day.
On 20 March 2012, District Judge Snow ordered the appellant's extradition following a contested hearing in which two basic grounds were raised: first, the warrant did not provide adequate particulars of the offence and of the sentence that might be imposed on conviction, an objection raised under section 2 of the Extradition Act 2003; secondly, the offence was not an extradition offence, an objection raised under section 10.
As to the first ground of objection, the particulars required are set out in section 2(4) of the 2003 Act, which requires that the information to be given is:
"(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."
I can deal with that objection shortly. The time and place are specified to the extent that the Polish authorities were able to specify them, in particular on 21 September 2004 at Golínsk. The requesting state is not required to specify in the warrant that which it cannot specify, namely when, if it does not know, infringing copies of copyright items were accepted by the appellant.
This warrant adequately specifies, to the extent that the requesting state can, when and where the offence was committed. The appellant can be in no doubt that fundamentally it arises out of what was discovered in his car when he was stopped in Golínsk on 21 September 2004, and what may have been retrieved from his flat on what was no doubt a subsequent search.
As far as the particulars of the maximum sentence are concerned, the warrant identifies two provisions of Polish criminal law: first, a section in the penal code, and secondly a section in the Copyright and Kindred Matters Act, which each provide for a maximum sentence of 5 years' imprisonment. Miss Kapila submits that may amount in total to 10, or it may be 5. In my judgment, the position is obvious: the general criminal code and the specific sentence in the specific Act are to be construed together and provide for a maximum sentence of 5 years.
Of greater substance and difficulty is the submission under section 10. The offence is not one in the Framework list. Accordingly, it only amounts to an extradition offence if there is an equivalent offence in English law. Two possible candidates have been advanced: first, section 107 of the Copyright, Designs and Patents Act 1988, and secondly section 329 of the Proceeds of Crime Act 2002. Mr Grandison, who appears for the requesting state, initially submitted that the equivalent section was section 107. He initially put the case on the basis that the warrant established that the goods were being imported into Poland at Golínsk so that an offence would have been committed under English law if the importation had been into the United Kingdom.
Section 107 of the 1988 Act provides that a person commits an offence who, without licence of the copyright owner:
"(b) imports into the United Kingdom otherwise than for his private and domestic use … an article which is, and which he knows or has reason to believe is, an infringing copy of a copyright work."
The district judge pointed out that, on the particulars set out in the warrant and supplemented by further information provided by the requesting state, it was not established whether at Golínsk the appellant was importing or exporting the discs found in his motorcar.
The alternative possibility that the appellant would have been guilty of an equivalent offence under section 107(1)(c) was not canvassed. That provides that a person commits an offence who, without licence of the copyright owner:
"(c) possesses in the course of a business with a view to committing any act infringing the copyright … an article which is, and which he knows or has reason to believe is, an infringing copy of a...
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